Lawyers and Tech Competency

Lawyers and technology often have a strenuous relationship, with many lawyers displaying a distinct reluctance to familiarizing themselves with new technologies. Still, tech competency not only provides a competitive edge, but, by now, for most lawyers it also has become an ethical requirement.

In the US, e.g., the American Bar Association’s House of Delegates formally approved a change to the Model Rules of Professional Conduct in August 2012. The new text makes it clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology. Following this change, a lack in tech competency could lead to disciplinary action for misconduct.

The new text of Comment 8 to Model Rule 1.1, which pertains to competence, now states (emphasis added):

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

The rule requires lawyers to keep up with the wide range of technology that can be used in the delivery of their services. This means they must stay abreast of the potential risks and benefits associated with any technology they use. It applies, e.g., to Word processing software, email services, security, including safeguarding confidential information, and practice management tools. In some cases, it may even apply to e-discovery or metadata analysis. Casey Flaherty gives the example that a lawyer should probably know how to convert document to PDF, or at least know how to create a document that is completely ready to be converted. In another example, he mentions that a lawyer who is working on a contract with numbered clauses and delegates it to another lawyer should know how to use automatic numbering and cross-referencing.

The competence clause adopted by the American Bar Association is a model rule, which means it must be adopted in a state for it to apply there. By now, 26 States have done so, and impose an ethical duty of legal tech competence.

As a model rule, each state can implement the rule as it sees fit. In Florida, e.g., this implies, as of 1 January 2017, that all lawyers as a part of their Continuing Legal Education, are required to spend a minimum of three hours over three years in an approved technology program. California, on the other hand, requires lawyers to have knowledge of e-discovery. Indeed, in an age when any court case can involve electronic evidence, every Californian attorney who steps foot in a courtroom has a basic duty of competence with regard to e-discovery.

The rule does not require lawyers to become a technology experts, as they can use the assistance of advisors who have the necessary knowledge. Florida’s competence rule, e.g., states that “… competent representation may involve a lawyer’s association with, or retention of, a non-lawyer advisor with established technological competence in the relevant field.”

Coming back to the example with regard to California and e-discovery, it means that a lawyer in California could face disciplinary action for not properly handling the e-discovery aspects of a case. Robert Ambrogi, in Above the Law, puts it as follows:

That is the key: You need to know enough about e-discovery to assess your own capability to handle the issues that may arise and, if you lack sufficient capability, you can effectively “contract out” your competence to someone else. That someone else could be another attorney in your firm, an outside attorney, a vendor or even your client, the opinion says, provided the person has the necessary expertise. (You cannot, however, contract out your duty to supervise the case and protect your client’s confidentiality.)

By now, two courts have already confirmed that tech competency is required for lawyers. One judge stated that “Professed technological incompetence is not an excuse for discovery misconduct.”

Because of the growing demand for tech-savvy lawyers, several Law School Deans are pushing to add tech to the curriculum. They generally agree that “law schools are a bit remiss in not offering more technology-based training to law students and that they should include legal technology training in the current law school curriculum. The roundtable concluded with the collective position that all law schools in the U.S. owe it to their student bodies to introduce technology-oriented topics into the curriculum in some form or fashion.”